Defense says judge biased in Nichols suit

Published: Friday, October 3, 2008 at 6:30 a.m.

Last Modified: Friday, October 3, 2008 at 6:26 a.m.

OCALA - William "Billy" Nichols Jr. doesn't believe he can get a fair trial in his auto negligence civil case based on "prejudicial" acts the judge made at an earlier hearing. His attorney is now moving to have the judge disqualified, new court records show.

In an affidavit filed Monday in circuit court, Nichols rebukes Circuit Judge Jack Singbush's refusal to consider an emergency motion filed two weeks ago by Michael Donsky, Nichols' lawyer, to seal part of his client's deposition.

"My counsel and I believe that certain portions are inadmissible and completely irrelevant to any issue in this case, and would cause my embarrassment, and would also have the potential to infect the jury trial in my trial," states the affidavit.

The emergency motion, submitted shortly after plaintiff's lawyer Scott Parks gave notice that he was preparing to file Nichols' deposition into the court record, came up during a Sept. 18 hearing on the issue of medical records but was never discussed at length.

Singbush chose not to hear testimony regarding the matter, but said at that hearing, "I think we ought to take the hinges off the doors. I don't see any reason why litigants in a lawsuit should be concerned about their privacy for Pete's sake."

At that same hearing, he ordered Nichols to undergo a medical examination and produce his medical records, despite the defense's vehement objections that the request was vague and intruded on Nichols' privacy.

Nichols, in his affidavit, points to the judge's ruling on that matter and his remarks as rendering bias. "In my mind, these actions show prejudice toward me, and amount to the trial court sanctioning harassment."

Scott Parks, the attorney for plaintiff Adrian Cummings - whose wife and daughter were killed in the auto collision for which Nichols was acquitted of DUI manslaughter last October - dismissed Nichols' attempts to remove the judge from his case. "What he's trying to do is against the law," he said.

Cummings is suing Nichols, 44, for auto negligence in connection to the November 2004 crash near Moss Bluff. In the criminal trial, Nichols' defense team submitted to the jury that their client experienced delayed gastric emptying, a condition that postpones the body's absorption of alcohol, therefore he was not technically driving under the influence at the time of the crash.

The past couple of weeks have seen a fair amount of legal wrangling between both sides, largely over issues of privacy surrounding Nichols, an Ocala businessman.

"The amount of publicity generated in the local community by this case, and the underlying criminal case, cannot be overstated," Donsky's motion states, with the lawyer asserting that the judge did not fulfill his "obligation to consider the emergency motion for protective order."

The order would prevent "potentially irrelevant and inflammatory information" from becoming public record, states the motion.

In a response Parks plans to file in court today, he dismisses the motion to disqualify as a stalling tactic to postpone a hearing that was scheduled for next week. He also addresses Donsky's claim that the judge had made an unfavorable ruling for the defense at the last hearing: "Many times in this case, the Plaintiff and his counsel left the courtroom with adverse rulings made against them - and they will in the future. However, they have not 'whined' about it nor claimed the Judge was unfair," the motion states.

As for the judge's refusal to take up the defendant's motion to seal the position, Parks charges the defense was trying to "piggy-back" the emergency motion to the Plaintiff's time in court and thus, there was "no proper notice to the hearing."

"In Florida, the standard to disqualify a judge is at such a level that even a judge who thinks the Defendant is guilty before the trial is not necessarily disqualified as reiterated by the Florida Supreme Court," the motion also states.

<p>OCALA - William "Billy" Nichols Jr. doesn't believe he can get a fair trial in his auto negligence civil case based on "prejudicial" acts the judge made at an earlier hearing. His attorney is now moving to have the judge disqualified, new court records show.</p><p>In an affidavit filed Monday in circuit court, Nichols rebukes Circuit Judge Jack Singbush's refusal to consider an emergency motion filed two weeks ago by Michael Donsky, Nichols' lawyer, to seal part of his client's deposition.</p><p>"My counsel and I believe that certain portions are inadmissible and completely irrelevant to any issue in this case, and would cause my embarrassment, and would also have the potential to infect the jury trial in my trial," states the affidavit.</p><p>The emergency motion, submitted shortly after plaintiff's lawyer Scott Parks gave notice that he was preparing to file Nichols' deposition into the court record, came up during a Sept. 18 hearing on the issue of medical records but was never discussed at length.</p><p>Singbush chose not to hear testimony regarding the matter, but said at that hearing, "I think we ought to take the hinges off the doors. I don't see any reason why litigants in a lawsuit should be concerned about their privacy for Pete's sake."</p><p>At that same hearing, he ordered Nichols to undergo a medical examination and produce his medical records, despite the defense's vehement objections that the request was vague and intruded on Nichols' privacy.</p><p>Nichols, in his affidavit, points to the judge's ruling on that matter and his remarks as rendering bias. "In my mind, these actions show prejudice toward me, and amount to the trial court sanctioning harassment."</p><p>Scott Parks, the attorney for plaintiff Adrian Cummings - whose wife and daughter were killed in the auto collision for which Nichols was acquitted of DUI manslaughter last October - dismissed Nichols' attempts to remove the judge from his case. "What he's trying to do is against the law," he said.</p><p>Cummings is suing Nichols, 44, for auto negligence in connection to the November 2004 crash near Moss Bluff. In the criminal trial, Nichols' defense team submitted to the jury that their client experienced delayed gastric emptying, a condition that postpones the body's absorption of alcohol, therefore he was not technically driving under the influence at the time of the crash.</p><p>The past couple of weeks have seen a fair amount of legal wrangling between both sides, largely over issues of privacy surrounding Nichols, an Ocala businessman.</p><p>"The amount of publicity generated in the local community by this case, and the underlying criminal case, cannot be overstated," Donsky's motion states, with the lawyer asserting that the judge did not fulfill his "obligation to consider the emergency motion for protective order."</p><p>The order would prevent "potentially irrelevant and inflammatory information" from becoming public record, states the motion.</p><p>In a response Parks plans to file in court today, he dismisses the motion to disqualify as a stalling tactic to postpone a hearing that was scheduled for next week. He also addresses Donsky's claim that the judge had made an unfavorable ruling for the defense at the last hearing: "Many times in this case, the Plaintiff and his counsel left the courtroom with adverse rulings made against them - and they will in the future. However, they have not 'whined' about it nor claimed the Judge was unfair," the motion states.</p><p>As for the judge's refusal to take up the defendant's motion to seal the position, Parks charges the defense was trying to "piggy-back" the emergency motion to the Plaintiff's time in court and thus, there was "no proper notice to the hearing."</p><p>"In Florida, the standard to disqualify a judge is at such a level that even a judge who thinks the Defendant is guilty before the trial is not necessarily disqualified as reiterated by the Florida Supreme Court," the motion also states.</p><p><i>Suevon Lee may be reached at suevon.lee@starbanner.com or 867-4065.</i></p>